Krishna Pada Mahato vs The State Of Jharkhand
2022 Latest Caselaw 745 Jhar

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           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(C) No. 2669 of 2019
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      Krishna Pada Mahato                                ...    ...    Petitioner
                                       Versus
      1. The State of Jharkhand

2. The Secretary, Department of Revenue, Registration and Land Reforms, Government of Jharkhand

3. The Commissioner, Kolhan Division, Chaibasa, District- West Singhbhum

4. The Deputy Commissioner, East Singhbhum, Jamshedpur

5. The Additional Deputy Commissioner, East Singhbhum, Jamshedpur

6. The Circle Officer, Patamda, District- East Singhbhum .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mrs. Ritu Kumar, Advocate For the Respondents : M/s. Neil & Moushmi Chatterjee, A.Cs. to S.C.-VII

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Order No. 09 Dated: 28.02.2022

The present writ petition has been filed for quashing order dated 10.04.2019 (Annexure-7 to the writ petition) passed by the Deputy Commissioner, East Singhbhum, Jamshedpur (the respondent no. 4) in Jamabandi Cancellation Proceeding No. 02 of 2017-18 in purported exercise of power conferred under Section 4(h) of the Bihar (now Jharkhand) Land Reforms Act, 1950 (in short, "the Act, 1950") whereby Jamabandi of the land appertaining to R.S Khata No. 383, Plot Nos. 1642, 1643, 1644, 327, 376, 378, 510, 1326, Village Dighi, P.S.- Patamda, District East Singhbhum measuring total area of 14.10. acres running in the name of petitioner's father and other co-sharers, has been cancelled.

2. During pendency of the present writ petition, an interlocutory application being I. A No. 6769 of 2019 was filed by the applicants, namely, Khagendra Nath Mahato, Satish Mahato, Bibhuti Bhushan Mahato and Rajendra Mahato seeking impleadment as petitioners in the present writ petition claiming themselves to be the successors of co-sharers of the petitioner. However, vide order dated 08.02.2022, the said application was dismissed by this Court on the ground that interveners could not be given status of petitioners so as to get any relief in the writ petition, however they were given liberty to file fresh writ petition, if so advised.

3. Learned counsel for the petitioner submits that the tanks namely 'Talpukur', 'Nutan Bandh' and 'Bara Bandh' with their embankments along with other cultivable land were settled in the name of petitioner's father

and other co-sharers. The 'Talpukur' tank with its embankment and other adjoining land were recorded under C.S Plot Nos. 568 (tank), 567, 574 and 575 corresponding to R.S Plot No. 1642, 1643 and 1644. The 'Nutan Bandh' tank with its embankment was recorded under C.S Plot Nos. 899, 22 corresponding to R.S Plot Nos. 327, 328 and 326 and the 'Bara Bandh' tank with its embankment was recorded under C.S Plot Nos. 361, 362 corresponding to R.S Plot Nos. 1326 and 510 along with other cultivable land situated at Mouza - Dighi, P.S - Patamda, District Singhbhum. The aforesaid tanks with their embankments and other adjoining agricultural land were settled with the father of the petitioner and other co-sharers on payment of salami of Rs.200/- each and annual rent of Rs.8/- in the year 1929 by the tenure holder of Mouza Dighi and they remained in peaceful possession over the same. In 1948, five registered 'Kabuliats' were executed by the tenure holder of the said mouza and thereafter, the rent was being regularly paid to the said tenure holder till vesting. During the last survey settlement published in the year 1964, the said tanks and embankments were wrongly recorded in the Khata of Bihar Sarkar. In the year 1974 the settlees came to know that the government was trying to settle the said tanks to some other persons and then they filed T.S. No. 289/1975, T.S No. 290/1975, T.S No. 291/1975, T.S No. 292/1975 and T.S No. 293 of 1975 for declaration of title and confirmation of possession of their respective shares over the land in question. The said Title Suits were decreed in their favour vide a common judgment dated 31.08.1989 by the Court of Sub-ordinate Judge- IV, Jamshedpur. Pursuant to the judgment and decree of the court below, the settlees preferred applications for mutation which were allowed by the respondent no. 6 vide order dated 14.02.1991 and correction slips were accordingly issued. Thereafter, they were regularly paying the rent. A Jamabandi Cancellation Proceeding being Record No. 23 of 2016-17 was initiated by the Circle Officer, Patamda (the respondent no.6) under Section 4(h) of the Act, 1950 on the basis of the report of the Halka Karamchari and the Circle Inspector of Patamda Anchal mentioning that the jamabandi of the land in question created in the name of petitioner's father and other co-sharers appeared doubtful. Thereafter, notices were issued to the settlees who in response to the same, produced all the documents related to their titles over their respective land including

the judgment and decree passed by the court below in aforesaid Title Suits as well as the order passed by the respondent no. 6 fixing the rent and opening the jamabandi in the name of the petitioner's father and other co-sharers. However, all the documents produced before the respondent no.6 were ignored and vide order dated 23.09.2016, the record was sent to the Land Reforms Deputy Collector, Dhalbhum, Jamshedpur for obtaining approval of the competent authority recommending that Jamabandi created over the land in question was doubtful. Ultimately the records were put up before the respondent no.4 registering Jamabandi Cancellation Proceeding No. 02 of 2017-18 in which notices were issued to the concerned raiyats including the petitioner's father who submitted all the documents showing the title over the said land, however the respondent no.4, vide order 10.04.2019, cancelled the Jamabandi running in the name of the petitioner's father and other co- sharers over the land in question.

4. Learned counsel appearing on behalf of the respondents submits that the respondent no. 6 had lawfully initiated proceeding under section 4(h) of the Act, 1950 in Record Case No. 23/2016-17 on the basis of the enquiry report submitted by Halka Karamchari and the Circle Inspector of Patamda Anchal. According to the said enquiry report, the Jamabandi of the land in question created in the name of the settlees was illegal as the same was created without any order of competent authority. The land in question was recorded as Anabad Bihar (Jharkhand) Sarkar' and the nature of the land was 'Tank'.

5. Heard learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with the order dated 10.04.2019 passed by the respondent no. 4 whereby the jamabandi running in the name of his father and other co-sharers for the land in question has been cancelled in purported exercise of the power conferred under section 4(h) of the Act, 1950.

6. The main contention of the learned counsel for the petitioner is that the long running jamabandi cannot be cancelled in exercise of the power conferred under section 4(h) of the Act, 1950.

7. Learned counsel for the petitioner has put much emphasis on the judgment rendered by the learned Division Bench of this Court in L.P.A

No.786 of 2018 (the State of Jharkhand & Others Vs. Izhar Hussain) whereby the judgment dated 14.06.2018 rendered by this Court in W.P.(C) No. 593 of 2017 (Izhar Hussain Vs. The State of Jharkhand) has been affirmed. The relevant paragraphs of the judgment passed in L.P.A. No. 786 of 2018 are quoted hereinbelow:-

"15. This Court, on the basis of aforesaid rival submissions, has found the legal issues about the applicability of the provision of Section 4(h), as under:

"Whether in the facts of the case the provision as contained under Section 4(h) of the Bihar Land Reforms Act is made to be applicable and as to whether under the provision of Section 4(h) of the Bihar Land Reforms Act Jamabandi granted in favour of any raiyats can be cancelled?"

16. This Court, in order to adjudicate this legal issue deem it fit and proper to go across the preamble of the Bihar Land Reforms Act, 1950, which says that for the transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals and to provide for the constitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith. The intention behind the proviso to provide for the transference to the State of the interests of proprietors and tenure holders in land and of mortgagees and lessees of such interests as enshrined in the directive principles of our Constitution of India under Articles 39 (B) and 39(C).

Section 4 of the Act, 1950 provides consequences of the vesting of an estate or tenure in the State. Subsection 4(b) thereof says that all rents, cesses and royalties accruing in respect of lands comprised in such estate or tenure on or after the date of vesting shall be payable to the State and not to the outgoing proprietor or tenure-holder and any payment made in contravention of this clause shall not be binding on the State Government. Sub-section 4 (h) provides power upon the Collector to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, and if he is satisfied that such transfer was made at any time after the 1st day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable; provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure and further provided that no order annulling a transfer shall take effect nor shall possession be taken

in pursuance of it unless such an order has been confirmed by the State Government.

It is, thus, evident that Section 4(h) confers power upon the Collector to effect any transfer if such transfer is found to be for the purpose of frustrating the intent and purport of the Act in respect of transfer made any time after 1st January, 1946.

The issue pertaining to applicability of provision of Section 4 (h) fell for consideration before Patna High Court in the case of Laxman Sahni Vs. State of Bihar & Ors. reported in 1990 (1) PLJR 170, wherein it has been laid down to the effect that recourse for cancellation of Jamabandi under the Sections can be taken only where any estate or tenure or any part thereof vests in the State. Section 4(h) clothes the Collector with jurisdiction to make enquiries in respect of transfers made any time after 1st January, 1946.

Further, in the case of Sri Rama Prasad Singh & Ors Vs. The State of Bihar & Ors reported in 1990 (1) PLJR 165, it has been held that annulment of settlement made in 1945 on the assumption that it was made within the family to deprive the valuable land is mere presumption. On a plain reading of the provision it is obvious that the Collector while exercising power to make inquiries in respect of any transfer must be satisfied that such transfer was made at any time after 1st January, 1946. No finding recorded that the transfer was made after 1st January, 1946. The Land Reforms Deputy Collector being an adjudicating body could not recommend for such annulment and had to arrive at his own conclusions in terms of Section 4(h) of the Act.

17. It further requires to refer herein that for vesting of the estate or tenure in a notification to that effect is required to be issued under Section 4 to the effect that the rent vested in the State of Bihar free from all encumbrances from the date of notification by operation of Section 4 such estate or tenure including the interests of the proprietor in such estate or tenure other than the interests of raiyats or under raiyats shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate or other than the interests expressly saved by or under the provisions of this Act. Reference in this regard be made of the judgment rendered in the case of Brighu Nath Sahay Singh & Ors Vs. Md. Khalilur Rahman & Ors reported in (1996) 1 PLJR (SC) 65. Herein, as would appear from the materials available on record, that the State Government has not produced any document pertaining to notification issued under Section 4 of the Bihar Land Reforms Act. Further the reference of notification issued by the forest department as contained in notification no. C/F/17014/58-1429R dated 24.05.1958 has been mentioned but the admitted fact after going through the Section 4 of the Act, 1950 is that there must be a notification under the provision of Section 4 of the Act, 1950 and if any notification has been issued by the forest department that cannot be said to be issued under the purported exercise of power conferred under Section 4 of the Act, 1950."

8. It has also been held in the aforesaid judgment that Jamabandi can be created under the provisions of Bihar Tenants Holdings (Maintenance of Records) Act, 1973 wherein no provision has been made conferring power to any authority of the State to cancel the Jamabandi. In absence of any

such power conferred by Statute upon any revenue authority, the Jamabandi cannot be cancelled. If such decision is taken by the revenue authority in absence of any such provision in the statute, the same will be nullity in the eye of law being without jurisdiction. Moreover, long running Jamabandi cannot be cancelled, except by filing a suit in the competent Court of Civil Jurisdiction, as has been held by Patna High Court in the case of Ramayan Yadav & Ors Vs. State of Bihar & Ors., reported in (2013) 3 PLJR 533.

9. It is true that the prescribed authority has the power to initiate a proceeding under section 4(h) of the Act, 1950 to verify if any transfer was made after 01.01.1946 just to defeat the provisions of the said Act or for causing loss to the State or for obtaining higher compensation, however, not all transfers made after 01.01.1946 are to be cancelled unless the ingredients under section 4(h) are fulfilled and the authority has given ample opportunity of hearing to the affected persons. Moreover, the authority has to record its reasons for arriving at such a conclusion.

10. In the case in hand, this Court finds that the proceeding under Section 4(h) of the Act, 1950 was initiated by the Circle Officer, Patmada for cancellation of jamabandi and finally the respondent no. 4 passed the impugned order dated 10.04.2019 by cancelling the Jamabandi running in the name of the petitioner's father and other co-sharers on the sole ground that the land in question was recorded as 'Gairmajrua Khas Anabad Bihar (Jharkhand) Sarkar'.

11. The respondent no. 4 while passing the impugned order has not cancelled the settlement made in favour of the settlees by deciding as to whether the said land was transferred after 01.01.1946 for the purpose of frustrating the intent and purport of the Act, 1950, rather has cancelled the jamabandi of the land treating it illegal. This Court is of the view that in the present case, the concerned respondent authorities by wrongly construing the provisions of Section 4(h) of the Act, 1950 initiated the proceeding under the said provision to somehow cancel the Jamanadi of the land running in favour of the petitioner's father and others and passed the impugned order dated 10.04.2019 which cannot be sustained in the eyes of law.

12. That apart, Title Suits filed by the settlees for declaration of right,

title, interest and possession over the said land were decreed on contest in their favour with a further declaration that the settlement entries published in the year 1964 in respect of the said tanks and their embankments recorded in the name of the State were wrong, which were to be corrected accordingly. The sole defendant (the State of Bihar) was further restrained from interfering with the possession of the plaintiffs over the suit tanks and embankments thereof.

13. The respondents have not stated in the counter affidavit that any appeal was preferred against the judgment and decree dated 31.08.1989 passed in the said Title Suits and thus the same has attained finality. On the one hand, the respondent-State did not comply the order passed in the said title suits by correcting the entry in the record of rights and on the other hand cancelled the Jamabandi of the said land running in the name of the petitioner's father and other co-sharers.

14. It is really shocking that the senior most administrative/revenue authority of the District (the respondent no. 4) has shown disrespect to the judicial order passed by a competent court of law even when the order was placed before him. The respondent no.4 instead of taking note of the said judgment, acted on the basis of the recommendation made by the respondent no. 6. Thus, the proceeding initiated by the respondent no.4 was mere eye-wash to somehow cancel the Jamabandi of the land in question running in the name of the petitioner's father and others. In my view, such attitude of the state authorities while exercising executive or quasi-judicial function must be depricated, otherwise it would be impossible even to get the orders passed by the judicial courts executed.

15. In view of the aforesaid discussion, the order dated 10.04.2019 passed by the respondent no. 4 in Jamabandi Cancellation Proceeding No. 02 of 2017-18 is hereby quashed. Since jamabandi of the land in question is running in the name of the petitioner's father, the petitioner is at liberty to make an application for succession mutation before the respondent no.6 who shall consider the same in accordance with law and on making necessary correction in the Jamabandi register, accept rent and issue rent receipt to the petitioner.

16. The writ petition is, accordingly, allowed.

Ritesh/AFR                                                         (Rajesh Shankar, J.)